Parent Attempts To Challenge School's First Grade Placement Decision of School District

Appeal of VICKI GERGELY, ___Ed. Dep't Rep. ___, No. 15, 742 (April 14, 2008), is an interesting case and well worth a read for students of education law. A parent was apparently so unhappy with the selection of her daughter's first grade teacher that she instituted this litigation. Not unsurprisingly, the District won. The Commissioner summarized the applicable law as follows: 

A board of education has broad authority, under Education Law §1709(3), to prescribe the course of study and to regulate the admission of pupils and their transfer from one class to another.  Consistent with that authority, a board has the power to place students in particular classes (Appeal of J.K. and M.B., 40 Ed Dept Rep 368, Decision No. 14,500; Appeal of Dawn H., 39 id. 635, Decision No. 14,336; Appeal of Reid, 32 id. 587, Decision No. 12,922).  The Commissioner will not substitute his judgment for that of a board of education with respect to student placement, absent evidence that the board has acted in an illegal, arbitrary or capricious manner (Appeal of J.K. and M.B., 40 Ed Dept Rep 368, Decision No. 14,500; Appeal of Dawn H., 39 id. 635, Decision No. 14,336; Appeal of Reid, 32 id. 587, Decision No. 12,922).  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).

Respondent submits an affidavit of the superintendent discussing the factors the district considers when assigning students to classes.  According to the superintendent, the district strives to maintain a “heterogeneous and diverse cohort” for each class.  As such, the district considers “male:female ratios; high, low; [sic] and median academic achievement; the required ‘pull-outs’ for special education and AIS services” in addition to specific input from teachers and any other “consideration that would relate to establishing a diverse and heterogeneous grouping.”  The district’s policy only considers parental preference where a specific teacher had previously taught an older sibling of the child in question.  The district’s policy also provides for a parent to request a transfer after the first quarter of the school year.

Petitioner has failed to demonstrate that the district did not consider these factors in developing the first grade assignments in her child’s school.

In any event, it is difficult to perceive what remedy the Commissioner could have ordered as the student is no longer in first grade. The Commissioner does not address that issue or the issue of mootness.

Mitchell H. Rubinstein